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'Water of U.S.' draft proposal open for comment

July 23, 2011

By LESLIE MIELKE
lmielke@cableone.net
BLACKFOOT — Comments on the federal draft proposals for “Water of the United States” are being accepted through July 31.
This draft guidance proposal broadens the scope of jurisdictional waters under the Clean Water Act (CWA).
In a letter dated June 29, 2011, Bingham County Commissioners wrote, “The changes will have an economic and restraining impact on all the residents of the county. ... The recommended guidance will increase the extent of waters over which there is federal jurisdiction. These new determinations will have ‘consequences’ for state, tribal, local governments, and private parties during a time when many of the small companies and businesses are struggling to survive.”
The commissioners suggested the following:
° Irrigation water that does not return to the stream or rivers needs to be given a blanket exception.
° Let each state be responsible and regulate their own industries and practices.
° Precautions need to be made for annual runoff from snow accumulation and storm events. Best management practices need to be in place to minimize damage and contamination.”
The draft guidance not only discusses when federal jurisdiction is triggered for traditional navigable waters, like rivers and lakes, but also when federal jurisdiction is over non-navigable waters, like man-made or man-altered ditches. Wetlands are also included in this list.
A man-made or man-altered ditch, such as a roadside ditch or flood channel, is considered a tributary under this guidance.
A tributary (or a tributary of a tributary) will be federally regulated if it meets certain conditions, such as, it has a defined bed/bank and an ordinary high water mark (OHWM). Think irrigation.
Under this guidance, non-navigable tributaries can be regulated if they connect directly or indirectly through other tributaries, to a downstream navigable water and there is a “seasonal” flow. Jurisdictional waters may include perennial, intermittent and ephemeral waters.
According to the EPA/Corps documentation, the guidance will increase the extent of waters over which federal jurisdiction has been used under existing guidelines.
All drainage and irrigation would be effected.
Not only the water but also herbicides and pesticides used around water, including the mosquito abatement program, would also come under this guidance. Under this guidance, more permits would be required.
These new determinations will have “consequences” (fines) for states, tribal, local governments, and private parties. Each decision would be made on a case by case basis.
“If Aberdeen-Springfield Canal Company is required to apply for an individual entity National Pollutant Discharge Elimination System (NPDES) permit for application of aquatic herbicides, we estimate our initial costs (NEPA-National Environmental Policy Act study) to be on the order of $100,000-$250,000, with an annual cost (for testing and documentation) of around $40-$60,000,” said Steve Howser, general manager of the Aberdeen-Springfield Canal Company. The permits are good for five years, so that means we would have the cost of the full NEPA every five years.”
To read the Federal Registry notice, go to http://water.epa.gov/water404.cfm
If finalized, this guidance will supersede previous guidance issued in 2003 and 2008.
“Water of the United States” is outlined by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). The guidance was published in the Federal Register on May 2, 2011.
To submit comments by email, go to the docket is ow-docket@epa.gov. Include EPA–HQ–OW–2011–0409 in the subject line of the message.

 

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